Most discussions of whether Hobby Lobby and Conestoga Wood are protected by the Religious Freedom Restoration Act (RFRA) as corporations have focused on their for-profit character. This is something of a red herring; for-profit character matters, but not in the way most people think. As law professors Micah Schwartzman, Richard Schragger and Nelson Tebbe have pointed out (see here and here), what disqualifies a corporation from RFRA protection is as much its size as its for-profit character.

The corporate plaintiffs in Hobby Lobby, for example, insist that they “believe” and “practice” the religion of their owners because they are “family businesses” and “closely held” corporations that have very few shareholders. This self-description evokes the stereotypical image of the small-town “mom-and-pop” grocery store, staffed mostly by an extended family whose members greet everyone by name and whose customers, suppliers and other employees uniformly identify as the “real” owners irrespective of legal formalities.

Federal laws are frequently sensitive to the needs of such genuinely small businesses. For example, Title VII of the Civil Rights Act exempts businesses with fewer than 15 employees, and the Fair Housing Act similarly does not apply to small apartment complexes where the owner resides on the premises. The ACA itself exempts businesses with fewer than 50 employees from the employer mandate to provide employee healthcare insurance.

The corporations here are light years away from the “mom-and-pop” stereotype. Hobby Lobby and its affiliates employ 13,400 people in 600 locations scattered through 39 states (including a 3.4 million square foot headquarters complex). Forbesestimates its annual revenue at substantially more than $2 billion.

Last week the U.S. Supreme Court agreed to review two lower court decisions involving for-profit businesses seeking religious exemptions from the Affordable Care Act’s so-called “contraception mandate.” The mandate requires that employer healthcare plans cover all FDA-approved contraception without “cost-sharing”—that is, without a copayment or other out-of-pocket patient expense beyond the monthly plan premium. Churches and other “houses of worship” are fully exempt from the mandate, and there is a regulatory accommodation for religious nonprofits like religiously affiliated colleges and hospitals, which excuses them from complying with the mandate so long as they certify that compliance violates the tenets of their affiliated religion.

For-profit employers whose religious beliefs condemn the use of some or all of the mandated contraceptives have challenged the mandate under the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from imposing a “substantial burden” on a person’s religious practices unless it is pursuing an exceptionally important goal that it cannot accomplish in another way. These employers are claiming that RFRA grants them the same kind of exemption as has been granted to churches, synagogues, and other religious congregations, even though they are unambiguously secular enterprises like craft stores, auto parts manufacturers, construction companies, and medical supply businesses. (I examined the weaknesses in these cases in an ACS Issue Brief last fall).

One of the mandate decisions the Court will review, Hobby Lobby Stores, Inc. v. Sebelius(10th Cir. June 27, 2013), decided that a for-profit corporation that operates a nation-wide chain of craft stores is a “person” who “exercises religion” under RFRA and thus is entitled to its protections. The other decision, Conestoga Wood Specialties Corporation v. Sebelius(3rd Cir. July 26, 2013) went the other way, finding that a for-profit corporation that operates a cabinet-making business is not protected by RFRA, and additionally holding that the mandate does not violate free exercise rights protected by the First Amendment.

Since issuing its landmark Roe v. Wadeopinion expanding liberty 40 years ago this month, the debate over abortion has only intensified. Indeed, over the last few years state lawmakers have pushed for even more laws aimed at making it incredibly onerous if not impossible for many women to access the medical procedure.

So did the high court’s Roe ruling spark a backlash and if so, should supporters of marriage equality gird for a similar reaction if the Supreme Court rules in favor of marriage equality? In a post for Balkinization’s “Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries” conference, ACS Board members Linda Greenhouse and Reva Siegel tackle the question and conclude, in part, that a backlash against reproductive rights was gathering before the high court issued its Roe opinion in January 1973.

Greenhouse, former Supreme Court correspondent for The New York Times, and Siegel, a distinguished professor of law at Yale Law School, write that the message emanating from the “premise of the Roe backlash narrative,” is that “minority claimants should stay away from the courts.”

But that message, Greenhouse and Siegel write, is not correct in all circumstances:

Of course, judicial decisions, like Roe and Brown, provoke conflict. The question is whether judicial decisions are likely to provoke more virulent forms of political reaction than legislation that vindicates rights. There was, is, and will be conflict over abortion, same-sex marriage, and indeed, the very meaning of equality. When minorities seek to unsettle the status quo and vindicate rights, whether in legislatures, at the polls, or in the courts, there is likely to be conflict and, if the claimants prevail, possibly backlash too. To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is no. The abortion conflict escalated before the Supreme Court ruled.

Greenhouse, Seigel and an array of other experts on liberty and equality will participate in panel discussions at the Jan. 18 – 19 conference at UCLA School of Law, which is part of the Constitution in 2020 project. (A schedule and listing of panelists is included at the end of this blog post.) See here for registration information.

Several of the Conference’s panelists are providing guest posts for Balkinization on topics likely to be discussed in detail or touched upon at the gathering. In another of those posts, the ACLU’s Louise Melling examines the legal challenges to the Affordable Care Act’s requirement that employers’ health care providers offer access to contraceptives. As Melling notes, there are a slew of lawsuits against the contraception policy, and many of them argue that employers’ religious beliefs should trump the ACA’s requirements on contraception.

Fr. Robert Araujo, Professor of Law at Loyola University Chicago, and Richard Garnett, Professor of Law & Political Science at the University of Notre Dame, have posted critical reactions on Mirror of Justice to my ACS Issue Brief, “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate.”

Many of Fr. Araujo’s questions are answered in the Issue Brief, but one comment deserves a direct response. He suggests that I have elevated statutory and regulatory claims to no-cost contraception under the Affordable Care Act over more fundamental constitutional claims under the Free Exercise Clause, which he believes is violated by the mandate. One hears this free exercise rhetoric frequently from mandate opponents, but it misreads constitutional history and misunderstands the content of free exercise rights.

The Free Exercise Clause does not protect a right of believers to be excused or exempted from complying with laws that generally apply to the rest of society, even when such laws burden their religious exercise. The Supreme Court has rarely recognized rights to free exercise exemptions, and then only in a few instances between the early 1960s and the late 1980s. The Court decisively rejected a general right to free-exercise exemptions in Employment Division v. Smith (1990), which it has repeatedly affirmed in the years since, most recently in Christian Legal Society v. Martinez (2010).

The lawsuits lodged against the Affordable Care Act’s contraception coverage policy are resting on wobbly legal ground, says a Brigham Young University law school professor in a new ACS Issue Brief.

In “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate,” Frederick Mark Gedicks, a distinguished law professor at BYU, says the ACA’s requirement that employers ensure that their health care coverage provides access to contraceptives for women “strikes a careful and sensible balance of competing liberty interests by exempting religious persons and organizations who do not externalize the costs of their religious beliefs and practices onto others who do not share them.”

Gedicks notes that the contraception coverage policy also “exempts churches who largely employ and serve persons of their own faith, but not religious employers who hire and serve large numbers of employees who do not belong to the employer’s religion or who otherwise rejects its anti-contraception values.”

Earlier this year social conservatives attacked the ACA’s contraception coverage policy saying it would force them to trample their religious beliefs by providing free contraceptives to their employees. Even with the administration’s announcement that churches and religious orders would be exempt from the mandate for coverage of contraception, some religious employers continued to demand a broader exemption. When that did not occur religious employers began lodging lawsuits around the country on First Amendment grounds and on the claims that their rights pursuant to the Religious Freedom Restoration Act (RFRA) would be violated.